Taking freebies? Or acts? McDonnell sentence will show what corruption really is

When former Gov. Bob McDonnell stands before U.S. District Judge James Spencer on Tuesday for sentencing, the big question will be: Is the core of political corruption taking money when in office, or doing something in return?

For the prosecutors who convinced a jury to find McDonnell guilty on 11 counts of violating federal political ethics law, the taking is the problem. They argue he should go to prison for more than 10 years.

To McDonnell, whose lawyers are asking for a sentence of 6,000 hours of community service — the equivalent of three years of 40 hour weeks — the issue is that he didn't do anything out of the ordinary in Virginia when accepting gifts and loans from a man whose business the governor wanted to promote.

McDonnell and his wife, Maureen, were convicted of denying the people of Virginia his honest services as governor and for enriching themselves by using his office. They, and members of their family, accepted $177,000 in gifts and loans from Jonnie Williams, then chief executive officer of Star Scientific, a cigarette maker-turned diet supplement firm.

In a way, it comes down to how you read those photos of the sitting governor of Virginia motoring down U.S. 360 in Williams' Ferrari and his comment that he was "entitled to be normal, to drive."

"That quote encapsulates the greed that motivated him," federal prospectors wrote in their memo calling for a 121-month to 151-month sentence. "No one is 'entitled' to drive a Ferrari, wear a Rolex, spend thousands of dollars on a single round of golf, or participate in a clam bake that costs more than $5,000 for eight people."

Defining corruption

McDonnell's lawyers said the case was different from most corruption cases.

First, because he didn't receive cash — or, as they put it, "did not take briefcases of money or hide stacks of $100 bills in his freezer," a reference to former Rep. William Jefferson of Louisiana, who was sentenced to 13 years for bribery under the same federal law and with similar jury instructions.

Jeanine McDonnell Zubowsky and Cailin Young wrote in blunt and at times scathing...

Second, because McDonnell didn't do anything out of the ordinary that really benefited Williams' company: the meetings with state officials that he urged and the promotional events he participated in were the kinds of things governors do for any Virginia business, they argue.

Third, because "his actions must also be viewed in the context of the culture of Virginia politics, in which numerous state officials routinely took advantage of these laws and accepted luxury vacations, rounds of golf, sports tickets, dinners and other things of value from donors and wealthy hangers-on," his lawyers argued.

Virginians, by and large, seem to focus on what McDonnell received, rather than on what he gave.

In the days after the jury found McDonnell guilty, two-thirds of voters surveyed by the student pollsters at Christopher Newport University's Wason Center said they agreed with the verdict.

"The jury were saying … it doesn't matter what you did, taking $177,000 is wrong," said Quentin Kidd, the CNU political scientist who serves as director of the Wason Center.

Taking is the issue, in other words. McDonnell was convicted under a federal law enacted nearly 70 years ago that prohibits extortion and a 1988 amendment to the federal fraud statute. Bribery, which involves gifts or loans or payments in return for acting or promising to act, comes under a different federal statute.

"There is a difference between lending a helping hand and being convicted of a federal crime of corruption. The jury perceived this and I expect the judge will, too," said Juliet Sorensen, a Northwestern University law professor with a special interest in political ethics cases.

"Just because a certain practice has long been tolerated does not mean that it is right, or that it should not be deterred by a significant sentence," she added.

And deterrence will be the key on Tuesday, she said.

Sentencing questions

The issue for Judge Spencer won't so much be deterring McDonnell himself from violating the law.

"However, he may well consider general deterrence — that is, a sentence intended to deter others similarly situated from committing similar crimes — to be significant in this case," Sorensen said.

"A high profile defendant and a case that has garnered nationwide publicity may be, in the view of the judge, an opportunity to send a message to other politicians who view the acts for which the governor was convicted as business as usual that crimes of public corruption are in fact serious and will be punished accordingly," she added.

Richard Kelsey, assistant dean of George Mason University's law school, also isn't betting McDonnell will win his case for community service.

"In order for this judge to impose community service rather than jail, he would have to repudiate the findings of the jury and essentially declare that we have two systems of justice, one for politicians and one for the rest of us," he said.

McDonnell's argument for community service because the gifts he and his family received caused relatively little harm is an argument the jury flatly rejected, Kelsey said.

"They found that the governor and his wife essentially milked Mr. Williams, who was happy to be milked, so that the governor could use the full weight of his office to promote a product and to provide meetings with officials that Williams never would have otherwise received, but for the gifts and favorable loans," he added.

"In the end, however, Mr. Williams is a free man. His actions were the bait in this trap of moral and legal failing by the governor.It is also true that the governor performed no greater services for Williams than he did for others not convicted of bribing the governor. Against that backdrop, I suspect the sentence will involve jail of less than five years, and more likely three to four," Kelsey added.

In the end, said CNU's Kidd, no matter how much time McDonnell spends behind bars, the message is clear.

"For a governor of Virginia to be sentenced to prison, and all during the trial and even today to continue to say 'what I did is consistent with Virginia tradition and law,' ignores that what he was tried for is not acceptable today and that it now doesn't reflect the ethical standards we expect of officials," he said.

"The Virginia Way was to say we trust your virtue and we trust your judgment … and that trust is gone."